DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Specification
The abstract of the disclosure is objected to because the abstract has figures and other text and is not on a separate sheet in proper U.S. format. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-8 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, it is unclear what the limitation “at least one cellular energy-absorbing insert is not entirely distinguishable from outside the helmet through the vent” requires structurally of the helmet. What materials or constructions would be considered to be “not entirely distinguishable”, it is unclear what would or would not read on this structurally.
Regarding claim 4, the limitation “in correspondence of bottom/s of said recess/es” is unclear as to what the bottom/s are referring to structurally. Are the recess/es referring to “at least one recesses” previously recited or another structure. Further, there is a lack of antecedent basis for this limitation “bottom/s” in the claim.
Regarding claim 5, it is unclear where the protective layer is located, in claim 4 from which claim 5 depends, the protective layer is located in bottom of the recess and then in claim 5 the protective layer is location over the recess, is this the same location along the recesses, are these two different locations of the protective layer? It is unclear what is required of the protective layer.
Any remaining claims are rejected depending from a rejected base claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chilson (US 2015/0047110) in view of Pritz (US 2023/0069274).
In regard to claim 1, Chilson teaches a helmet (helmet: 100) comprising: at least a cellular energy-absorbing insert (second shock absorbing insert: 126); a foam liner comprising at least one recess shaped to accommodate the at least one cellular energy-absorbing insert (foam liner/shock absorbing liner: 130 and figures 4 and 5); the foam liner also comprises at least one vent (vents: 109, figures 1, 2, 4 and 5).
However, Chilson fails to teach a protective layer that crosses the at least one vent and being a continuous protective layer closes the vent/s such that the at least one cellular energy-absorbing insert is not entirely distinguishable from outside the helmet through the vent.
Pritz teaches a helmet (helmet: 10) with a protective layer that crosses the at least one vent and being a continuous protective layer closes the vent/s such that the at least one cellular energy-absorbing insert is not entirely distinguishable from outside the helmet through the vent (protective layer/42, 40 and 44, paragraphs 0045-0046).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Chilson with the vent cover/protective layer of Pritz, since the helmet vent of Chilson provided with a vent cover/protective layer would provide a vent that can be opened and closed based upon comfort and air flow desired.
In regard to claim 2, Chilson teaches wherein the cellular energy-absorbing insert comprises a plurality of interconnected open cells configured to absorb energy by plastic deformation in response to a longitudinal compressive load applied to said cells (cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 3, Chilson teaches wherein each cell comprises a tube having sidewall/s and a longitudinal axis, and the cells are connected to each other through their sidewalls (cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 4, the combined references teach wherein the protective layer is attached to the foam liner in correspondence of bottom/s of said recess/es (the protective layer: 40, 42, 44 is attached to the bottom surface of the upper layer of Pritz (see figure 7), the protective layer, 40, 42, 44 covering the vents of Chilson would be attached to the bottom outer layer, which would be foam layer 130).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Chilson with the vent cover/protective layer of Pritz, since the helmet vent of Chilson provided with a vent cover/protective layer would provide a vent that can be opened and closed based upon comfort and air flow desired.
In regard to claim 5, the combined references teach wherein protective layer is a sheet layered over the recess of the foam liner (Pritz teaches the protective layer: 40, 42, 44, the protective layer: 40, 42, 44 is attached to the bottom surface of the upper layer of Pritz (see figure 7), the protective layer, 40, 42, 44 covering the vents of Chilson would be attached to the bottom outer layer, which would be foam layer 130).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Chilson with the vent cover/protective layer of Pritz, since the helmet vent of Chilson provided with a vent cover/protective layer would provide a vent that can be opened and closed based upon comfort and air flow desired.
In regard to claim 6, Chilson teaches wherein cellular energy-absorbing insert has synclastic properties (see figures 4 and 5 the cellular insert: 126 is dome shaped, which makes it has synclastic properties).
In regard to claim 7, Chilson teaches wherein the cellular energy-absorbing insert is configured to provide an improved shock absorbing protection as compared with the foam liner (paragraph 0014 detailing honeycomb structure of insert is more shock absorbing than liner 130).
In regard to claim 8, Chilson teaches wherein the foam liner is made of a polymeric expanded foam (foam liner: 130, paragraph 0014 details EPS).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 14, 6-7, and 13-15 of copending Application No. 19/157,363 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because they both claim a helmet with cellular insert, foam liner, vent and protective layer/insert.
Claim 1 of Current Application:
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Subject matter of claim 1 of current application (above) is taught in claims 1 and 7 as provided below from 19/157,363:
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Claim 2 of the instant application is the same as claim 2 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 4 of the instant application is the same as claim 4 of 19/157,363; Claim 5 of the instant application is the same as claim 6 of 19/157,363; Claim 6 of the instant application is the same as claim 13 of 19/157,363; Claim 7 of the instant application is the same as claim 14 of 19/157,363; Claim 8 of the instant application is the same as claim 15 of 19/157,363.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be found cited on PTO-892 form submitted herewith. The cited prior art to Muskovitz (US 8,256,032) is of particular relevance to the claimed invention.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T Ostrup can be reached at (571)272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732